[25] While I do not entirely discount Dr. Mamelak’s evidence, he inappropriately crossed the line by vociferously advocating on behalf of the Plaintiff before the jury rather than acting as an independent impartial expert. His subjective advocacy greatly diminished his credibility. The gulf between Dr. Mamelak’s categorical assertions about Mr. Nguyen’s capabilities and Mr. Nguyen’s actual capabilities as revealed in the evidence undermines the weight that can be given by me to his testimony. In particular, I do not accept Dr. Mamelak’s evidence regarding Mr Nguyen’s permanent serious injury for the following reasons.
[26] First, Dr. Mamelak told the jury that they could rely upon the Ontario Disability Support Program’s (ODSP) decision that Mr. Nguyen was disabled as evidence that Mr. Nguyen is disabled. The jury are of course required to come to their own conclusions about Mr. Nguyen’s alleged impairment and should not be relying upon the finding of an administrative decision-maker in another context. By encouraging the jury to rely upon the ODSP finding, Dr. Mamelak adopted the role of advocate for Mr. Nguyen and stepped outside of his role as expert witness. As a very experienced psychiatrist and seasoned expert witness, he should know better than to make such a suggestion to the jury. It was completely inappropriate and I instructed the jury to disregard this comment in no uncertain terms.
[27] Second, Dr. Mamelak dismissed out of hand the reliability of the trial video surveillance evidence, while telling the jury that he was of the view that surveillance evidence should never be admissible in civil trials. His wholesale rejection of an entire category of evidence that is regularly and properly admitted into evidence colours his credibility. To be clear, it would have been entirely appropriate for Dr. Mamelak to confine his comments to testifying as to why Mr. Nguyen’s actions in the videos might be consistent with his diagnosis. Instead, Dr. Mamelak simply testified that the surveillance evidence had no value whatsoever and should be disregarded. This was indicative of his tendency to simply dismiss out of hand rather than to seriously engage head-on the evidence that the Defendant argued undermined Mr. Nguyen’s claims. I, again, had to tell the jury to disregard this intemperate remark.
[28] Third, Dr. Mamelak clearly has strong views about the statutory accident benefits regime in Ontario and the role of insurance companies. His repeated references to the actions of the insurance company were irrelevant to the evidence he was qualified to give, namely his observations and medical conclusions about Mr. Nguyen. As a doctor who has presumably dealt with many statutory accident benefits and tort claims in the past, it is understandable that Dr. Mamelak might have developed opinions about these regimes. The problem is that his evidence about Mr. Nguyen’s alleged impairment appeared to be strongly coloured by these opinions. He made several unprompted references to his disagreement with insurers and appeared to reflexively place much of the blame for Mr. Nguyen’s current situation on the insurance industry.
[29] Fourth, Dr. Mamelak was brusquely dismissive of the Defendant’s medical evidence and did not seriously challenge the findings of Dr. Stephens and Dr. Hoffman. He described Dr. Hoffman’s suggestion that Mr. Nguyen was still grieving for the death of his family members in Vietnam as “nonsense”. Against the backdrop of Dr. Mamelak’s claim of nonsense, it was ironic that Mr. Nguyen broke down on the stand when describing the deaths in his family. I agree with counsel for the Plaintiff that this does not indicate that the death of Mr. Nguyen’s family members caused his current complaints, but Dr. Mamelak’s curt dismissal indicates that he was not prepared to seriously engage with Dr. Hoffman’s opinion on this and other points. Similarly, his major critique of Dr. Stephens was that her results amounted to little given the invalidity in the scores, but he did not really address Dr. Stephen’s conclusion that Mr. Nguyen was not putting in a valid effort and was exaggerating his impairment. His superficial dismissal of both experts’ conclusions betrayed his subjectivity and damaged his credibility.
[30] Fifth, as mentioned, Dr. Mamelak at times acted as an advocate for Mr. Nguyen rather than as an independent and impartial expert to assist the court. The gulf between Mr. Nguyen’s claimed level of near-total disability and his apparent level of actual ability was stark. Dr. Mamelak testified that Mr. Nguyen was completely incapable of living alone, caring for himself, and working in any permanent employment. The evidence indicated that Mr. Nguyen had helped a friend move, has lived by himself for several years, and made several independent multi-month trips to Vietnam. Dr. Mamelak could have revised his opinion to state that perhaps Mr. Nguyen was capable of part-time employment, or was something less than completely disabled, but he remained steadfast and obdurate in his views in the face of this diametrically opposed evidence